Filed
Washington State
Court of Appeals
Division Two
August 25, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59621-1-II
Respondent,
v. UNPUBLISHED OPINION JEREMY DANIEL FLOYD, Appellant.
CHE, J. — Jeremy Floyd appeals his conviction and sentence for second degree child molestation.
When EB was 13 years old, she spent the night with Jeremy Floyd and his daughter, who EB considered to be her uncle and cousin, respectively. While watching a movie on Floyd’s futon, Floyd put his hand inside EB’s pajamas and squeezed her breast. EB fled the room and reported the touching to her godparents. At trial, the court declined to admit evidence that EB had previously been sexually assaulted by her half-brother. The State did not ask EB whether EB and Floyd were married. In closing argument and rebuttal, the State mentioned that Floyd had four days to think about what to say to law enforcement. The jury convicted Floyd. As part of the terms of his community custody, the trial court prohibited Floyd from dating, socializing, or forming a romantic interest or sexual relationship with any person who has custody of a minor.
Floyd appeals his conviction and sentence, arguing (1) the trial court violated his right to present a defense by excluding evidence that EB had previously been sexually assaulted by her
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half-brother, (2) he received ineffective assistance of counsel, (3) the State committed prosecutorial misconduct during its closing argument by arguing facts contradicted by the record, (4) the State failed to produce sufficient evidence that EB was not married to Floyd, and (5) the community custody condition prohibiting Floyd from socializing with anyone who has custody of a minor unconstitutionally infringes on his right to association.
We affirm.
FACTS
In May 2020, when EB was 13 years old, she went to her godparents’ home to spend the night with Floyd’s daughter, S. EB considered Floyd her “uncle” and S her “cousin,” although they were not related by blood. Floyd was best friends with EB’s father and friends with EB’s godparents for around 15 years. At the time, Floyd lived in EB’s godparents’ basement because he had recently broken up with his significant other. That evening, EB, S, and Floyd were watching a movie on the futon in the basement. At some point, S fell asleep, and Floyd carried her into his bedroom.
Floyd came back to the futon, sat down, and started rubbing EB’s back while EB pretended to be asleep. Floyd then crawled onto the futon and laid down behind EB. Floyd shifted EB from her stomach to her side and pressed against her back. EB was able to feel his “boner.” 2 Rep. of Proc. (RP) at 982. Floyd put his right arm under EB’s head and placed his right hand inside her onesie pajamas and under her bra, grabbing her left breast. Floyd’s left hand was around EB’s waist and then he moved it to unzip her pajamas. When Floyd started to unzip EB’s pajamas, EB made a wheezing sound pretending to wake up, and Floyd stopped. He zipped up EB’s pajamas and placed his left hand in between her thighs, close to her vagina.
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At first, EB did not know what to do and was afraid. EB heard her godparents arguing on the back porch. Then EB jumped off the futon, went to the door, exited the basement, and went upstairs to find her godmother. When EB saw her godmother sitting at the top of the stairs, EB started crying and told her that Floyd had just touched her. EB and her godmother then went to EB’s godfather and told him what happened. EB’s godfather called EB’s dad, with whom EB lived.
The police came to the home that same evening and spoke with EB and Floyd. Four days later, investigators arrested and conducted a recorded interview with Floyd. Floyd explained that he had fallen asleep on the futon while watching a movie with S and EB. When he woke up, S had moved into his bedroom and EB was no longer in the basement. Floyd denied moving S from the futon to his bedroom and presumed EB left because she got hot. When the officer asked Floyd if he should interview S to lend credibility to Floyd’s statement, Floyd said, “I would really appreciate it if you didn’t.” Ex. 7 at 16:39-16:42.
During his interview with law enforcement, Floyd also repeatedly denied inappropriately touching EB. Floyd offered that he may have rolled over in his sleep and accidentally touched EB. Floyd also stated that EB did not get the attention required so she could have accused him to “get that attention.” 3 RP at 1011. Floyd suggested that EB was falsely accusing him due to her trauma from being sexually assaulted by her half-brother when she was nine or ten years old.1 During the recorded interview, Floyd insisted he had been as forthcoming as possible. “I don’t really know what to do or say at this point other than to tell you guys my side of
1 When EB was nine or ten years old, she reported that she awoke one night to her half-brother attempting to penetrate her with his penis. EB’s half-brother ultimately confessed to the crime and was convicted of attempted rape.
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everything. I have. I’ve repeated it. I told it to the cops the—the night that they were there, the exact same thing and I told you, I have no reason to hide or lie.” Ex. 7 at 9:50-10:14.
The State charged Floyd with second degree child molestation, and the case proceeded to a jury trial. The first trial resulted in a mistrial after it was discovered that the presiding trial judge had previously represented EB’s half-brother in his attempted rape case, and Floyd’s defense counsel had represented EB’s half-brother in another case. The second trial also resulted in a mistrial after the jury was unable to reach a unanimous verdict.
At the third trial, during motions in limine, the State moved to exclude evidence or reference to EB’s past sexual behaviors or victimizations.2 Floyd did not object to the State’s motion. The State argued that the evidence was irrelevant to the current charge and would confuse the jury under ER 403. The trial court granted the State’s motion to exclude stating, “I think if you wanted to offer anything under potentially a rape shield, you’d have to make a
2 Relatedly, at the same time, the court considered the defense motion in limine to use statements EB made during her half-brother’s sexual assault investigation for impeachment purposes. EB’s statements in that case were that “He tried to stick his thingy up me,” “when he was trying to, he uhm, like squirted,” and EB identified “‘a thingy’ as a penis.” 2 RP at 933. One argument Floyd advanced was that EB knew what a penis was based on the prior assault. The court stated, “whether somebody is convicted doesn’t really have any bearing on what [EB] knows or doesn’t know, and the idea that—I don’t think the Defense can argue, gee, she’s presenting as innocent here. I think that ends up treading on rape shield and getting into her behavior and saying somehow she’s promiscuous or something along those lines when she—[ ] when she’s trying to present as—or when she’s trying to present as sort of pure as the driven snow here at trial. I mean that—I don’t think that argument is permissible even if this is allowed. . . . I don’t think we even need to get into the fact that it’s in a criminal proceeding.” 2 RP at 762-63.
Later, the court ruled EB’s statement identifying a penis “doesn’t fall under rape shield. This is not getting to and it’s not admitted for her—essentially lack of virtue or lack thereof. And any argument along those lines would be improper when referring to the evidence. It’s—it is a prior inconsistent statement. . . . it is admissible as a prior inconsistent statement. So, and I think there’s a good faith basis to ask the question. . . . I think it does fall under ER 613, not under rape shield . . . it’s not getting into her past behavior, it’s just knowledge, anatomical knowledge.” 2 RP at 934-35.
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motion to do that, and then you’ve got to—when it’s relevant regarding consent, and this is not a case where consent is even an issue, so I would grant [the State’s motion in limine].” 2 RP at 763. A few moments later, the trial court revisited its ruling, explaining that it did not find the prior investigation with the half-brother relevant.
During trial, the State introduced an audio recording of Floyd’s interview with law enforcement and had redacted Floyd’s reference to EB’s prior sexual assault. Floyd did not object.
EB testified consistently with the facts above. EB also testified that she was never in a state-registered domestic partnership with Floyd. EB recalled that while she tried to go to sleep by closing her eyes and being still at Floyd’s on the night in question, she never fell asleep. She admitted that she sometimes had trouble falling asleep and did not dream. She did not previously mention feeling Floyd’s “boner” because she only realized what it was when she was 15 years old and it “clicked.” 2 RP at 982.
EB’s godparents each testified at trial and recalled how upset EB was on the night of the incident. They recalled that EB was very emotional while telling them that Floyd had put his hand inside her pajamas. They did not recall having an argument before EB reported the touching to them. A police officer testified that EB had not reported during the investigation that Floyd had touched her waist or thigh, or had a “boner.” 3 RP at 1021.
Floyd also testified at trial. He explained that he was staying in the basement apartment because he had recently broken up with his significant other. Floyd recalled that on the night in question, he fell asleep on the futon while he, EB, and S watched a movie. When he woke up, the movie had ended and neither child was on the futon. Floyd found S asleep in his bedroom and assumed EB had gone upstairs. He denied rubbing EB’s back, putting his hand down EB’s
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shirt, or touching her waist. Floyd went outside to smoke a cigarette, came back inside, turned on a documentary, and tried to go back to sleep.
Then, the police knocked on his door, and Floyd spoke to them. Floyd did not testify about the content of his discussion with the police that night. Floyd admitted the recorded interview occurred on the Tuesday after the Friday night or Saturday morning incident, stating “I’m a logical guy . . . [I had] all that time to, like, logically try to think of why [EB] would make those accusations. So, yeah. My brain had been working, so, yeah, I did try to come up with some logical reason why that would happen.” 3 RP at 1065.
Floyd thought that the interviewing officer was trying to pressure him into admitting conduct he did not do. Floyd felt the officer “already assumed I was guilty” based on his demeanor and how the officer repetitively asked him to admit he did something to EB. 3 RP at 1064.
The trial court instructed the jury that it was their duty to decide the facts in the case based upon the testimony and exhibits admitted, and the argument from the lawyers was not evidence. The court further instructed that the jury must disregard any remarks, statements, or arguments that are not supported by the evidence presented or the law in the court’s instructions.
In its closing arguments, the State emphasized that EB immediately ran to tell two other adults what had happened and referenced their testimony about how EB was visibly upset when she told them. The State concluded its closing argument by saying Floyd “didn’t talk about this. He doesn’t talk about it until May 6th, four days later. That’s when he tells his story. So, I ask you guys to think about the testimony that you heard, the evidence that was presented, and use your commonsense.” 3 RP at 1085. Floyd did not object.
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In his closing arguments, Floyd argued that there was insufficient evidence to find him guilty beyond a reasonable doubt. He argued there was a lack of evidence such as no corroborating physical evidence like DNA from under EB’s clothes. Floyd contended the police “seemed pretty laissez-faire, like they just wanted to believe what [EB] said right away, not do any work” and that the interviewing officer didn’t interview S to corroborate either side. 3 RP at 1087. He argued that EB’s testimony was not credible and urged the jury to find him not guilty. Floyd pointed out that EB had added facts to her story over time such as “thigh touching and waist touching. And now let’s add a boner into the mix.” 3 RP at 1088.
Floyd also contended that EB was in a “dream state” and imagined Floyd touching her.
3 RP at 1090-91.
[T]he question is—well, why would she lie about it? Sounds like a dream state to me. She-she sprung up. She thought three movies were going. She’s not in touch with reality, in touch with time.
She’s thinking she’s hearing an argument upstairs. That’s not happening.
She’s not in touch with reality. Her timeline doesn’t make sense. She said, yeah, we watched three movies . . . we each picked one. She was—the movies started after dark, after dinner, around eight. Three movies is about five hours’ time—
nine, 10, 11, 12, one. She’s, like, no, I was back at home before midnight. So, what she’s saying doesn’t make sense.
....
She says she doesn’t dream. That’s kind of an extraordinary claim. I mean we all dream. . . . . [S]he probably fell asleep. She probably thought what was happening was reality. She woke up, sprung out of bed, immediately told family.
Well, in her dreams, she’s hearing them arguing. I mean, she’s misplacing reality with dream world. I mean, we know that that happens.
....
So, why would EB lie? . . . maybe she doesn’t get enough attention at home.
Maybe something happened to her at some point in her life, and now she gets triggered by laying there with [Floyd], and now, you know, she’s attributed something that he did to her that didn’t happen.
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3 RP at 1090-92.
Floyd also argued, “The cops are called, so there’s no point—there’s no time to really assess and say, wait, you know, did this really happen? . . . That’s, I guess, what we’re doing here at trial now. . . . This is the investigation that the officers should have done, but all they wanted to do was just get [Floyd] to admit as soon as possible and put as much pressure on him.” 3 RP at 1092.
In rebuttal, the State argued that witness testimony is evidence. The State referenced Floyd’s statement in his interrogation four days after the incident that he may have rolled over and touched EB while sleeping. In an effort to compare the credibility of EB’s and Floyd’s version of events, the State argued, “[I]n this case, who has the most time to think of their story? Who has time to think about how they want to swing the series of events? Was it the child who immediately disclosed or was it someone talking to the police four days later? Think about that.” 3 RP at 1096.
The jury found Floyd guilty. The trial court sentenced Floyd to a standard range sentence of 18 months in custody. Floyd was also sentenced to 36 months of community custody and imposed community custody condition 19, which stated “[d]o not date, socialize, or form a romantic interest or sexual relationship with any person you know or reasonably should know to have physical custody of a minor.” Clerk’s Papers (CP) at 48. He was also ordered to “[h]ave no contact with minors under the age of 18 without the approval of [the community corrections officer], sex offender treatment provider, and a [Department of Corrections] approved chaperone/supervisor of contact” but the condition did not prohibit contact with his own biological children. CP at 47.
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Floyd appeals.
ANALYSIS
I. RIGHT TO PRESENT A DEFENSE Floyd argues that the trial court’s ruling excluding evidence that EB was sexually assaulted by her half-brother denied his right to present a defense. We disagree. A. Legal Principles Both the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee the criminal defendant’s right to present a defense. State v. Starbuck, 189 Wn. App. 740, 750, 355 P.3d 1167 (2015). We apply a two-step review of evidentiary rulings that involve a defendant’s constitutional right to present a defense. State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019).
First, we examine whether the trial court abused its discretion regarding the evidentiary ruling. Id. A trial court abuses its discretion when it “‘relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law.’” State v. Keller, 2 Wn.3d 887, 921, 545 P.3d 790 (2024) (quoting Arndt, 194 Wn.2d at 799).
Second, we review de novo whether that ruling violated the defendant’s right to present a defense. Arndt, 194 Wn.2d at 797-98. It is not a violation of the defendant’s right to present a defense if the defendant is still able to present relevant evidence to support their central defense theory. Id. at 814.
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B. Exclusionary Ruling Floyd argues that the trial court abused its discretion by excluding evidence that EB had previously been sexually assaulted by her half-brother. Specifically, Floyd argues that the trial court erred by excluding the evidence under Washington’s rape shield law. We disagree.
“The purpose of the statute is to encourage rape victims to prosecute, and to eliminate prejudicial evidence of prior sexual conduct of a victim which often has little, if any, relevance on the issues for which it is usually offered, namely, credibility or consent.” State v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842 (1984); RCW 9A.44 .020. Evidence that an alleged child victim had been previously sexually abused does not fall within the purpose of the rape shield statute. State v. Kilgore, 107 Wn. App. 160, 177, 26 P.3d 308 (2001). This rule is based, in part, on the fact that children are incapable of consenting to a sex act, therefore admission of prior sexual abuse is not prejudicial to the victim nor does it tend to discourage prosecution. Instead, courts should use “general evidentiary principles” and balance the probative value of the past sex abuse evidence against its possible prejudice. Id.
Here, the prior sexual assault against EB did not fall within the purpose of the rape shield statute. Id. Thus, to the extent that the trial court applied the rape shield statute to exclude evidence that EB was previously sexually abused by her half-brother, the trial court erred.
But the trial court also excluded the evidence as irrelevant. Irrelevant evidence is not admissible. ER 402. Evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401.
Floyd argues that evidence that EB had previously been sexually assaulted by her half-
brother was relevant to his defense theory that EB falsely accused Floyd based on trauma from
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her previous victimization. He contends that the evidence would have bolstered his theory at trial that EB had fallen asleep, experienced a nightmare that startled her awake and led her to erroneously believe that Floyd was molesting her.
EB’s argument is unavailing. Nothing in the record showed that EB experienced ongoing traumatic responses stemming from her previous assault. Thus, the mere fact that EB’s half- brother had attempted to rape her several years prior, without more, had no tendency to make Floyd’s theory that EB dreamt the molestation as a trauma response more probable.
Moreover, any error in excluding the evidence that EB had previously been sexually assaulted was harmless. The nonconstitutional harmless error test requires the defendant to show that “within reasonable probabilities . . . the outcome of the trial would have been materially affected” had the error not occurred. State v. Barry, 183 Wn.2d 297, 317-18, 352 P.3d 161 (2015) (internal quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
As previously mentioned, nothing in the record established that EB experienced ongoing traumatic responses from her previous assault. EB testified that she never dreams and that she was fully awake and aware of Floyd’s movements leading up to and during the molestation. Additionally, permitting evidence of the previous assault could have potentially bolstered EB’s credibility because it would show that she accurately reported her half-brother’s assault on her. The jury was ultimately unpersuaded by Floyd’s argument that EB was not credible, and it would be unreasonable to conclude that irrelevant evidence that EB had previously been sexually assaulted would have changed that determination.
In sum, we hold that the trial court did not abuse its discretion by excluding evidence that EB had been sexually assaulted by her half-brother. Accordingly, we next consider whether the
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trial court violated Floyd’s constitutional right to present a defense. State v. Jennings, 199 Wn.2d 53, 58, 502 P.3d 1255 (2022). C. Right to Present a Defense “[T]he constitutional right to present a defense ensures the defendant has an opportunity to defend against the State’s accusations.” Id. at 66. “‘The Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant[,] or poses an undue risk of harassment, prejudice, [or] confusion of the issues.’” Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (some alterations in original) (internal quotation marks omitted) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)). Where the defendant’s evidence is minimally relevant, but he had the opportunity to present his version of the incident, even if some evidence was excluded, a defendant’s right to present a defense is not violated. Jennings, 199 Wn.2d at 66-67; see also State v. Hudlow, 99 Wn.2d 1, 18, 659 P.2d 514 (1983).
We distinguish between evidence that “merely bolsters credibility” from evidence that is “necessary to present a defense.” Id. “The balance more often tips against a constitutional violation when a defendant asserts a . . . violation based on evidentiary limitations imposed on a defense that is otherwise presented and developed.” State v. Caril, 23 Wn. App. 2d 416, 431, 515 P.3d 1036 (2022).
The trial court’s ruling did not restrict Floyd’s ability to present his theory of the case—
that EB was not credible and that the State presented insufficient evidence. Floyd questioned EB at length, highlighting inconsistencies in her testimony from trial to trial and the fact that she had been able to identify a penis years earlier. Floyd also argued lack of physical evidence and
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police officer bias. Accordingly, we hold that Floyd’s right to present a defense was not violated by the trial court’s evidentiary ruling.
II. INEFFECTIVE ASSISTANCE OF COUNSEL Floyd also argues that he received ineffective assistance of counsel based on counsel’s failure to challenge the State’s motion in limine to exclude evidence that EB had been sexually assaulted by her half-brother. We disagree.
Criminal defendants have a constitutional right to effective assistance of counsel. U.S.
CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d 424 (2021). We review claims of ineffective assistance of counsel de novo. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on a claim of ineffective assistance, a defendant must show “both (1) deficient performance and (2) resulting prejudice.” Id. at 457-58. If either element of the test is not satisfied (deficient performance or prejudice), the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). If a defendant bases his claim of ineffective assistance on counsel’s failure to object, “the defendant must show that the objection would likely have succeeded.” Vazquez, 198 Wn.2d at 248.
As discussed above, the trial court’s exclusionary ruling was not erroneous. Accordingly, Floyd fails to show that an objection to the motion in limine would have led to the denial of the motion, and Floyd’s claim of ineffective assistance of counsel fails.
III. PROSECUTORIAL MISCONDUCT Floyd also argues that the State committed prosecutorial misconduct by arguing facts during closing that were contradicted by the record. We disagree.
To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756,
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278 P.3d 653 (2012). First, we determine whether the prosecutor’s conduct was improper. Id. at 759. If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper conduct resulted in prejudice. Id. at 760. Prejudice is established by showing a substantial likelihood that the prosecutor’s misconduct affected the verdict. Id.
However, if a defendant does not object at trial, they are deemed to have waived any error unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not have cured any resulting prejudice. Id. at 760-61. Under this heightened standard of review, the defendant must show that “(1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). In making a prejudice determination, we “focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.” Id. at 762.
When reviewing a claim of prosecutorial misconduct, we consider the statements in the context of the entire case. Thorgerson, 172 Wn.2d at 443. In closing arguments, the State is afforded wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). The State may draw reasonable inferences from the evidence and respond to defense arguments in its closing arguments. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997); State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997).
Floyd contends that the State committed incurable flagrant and ill-intentioned misconduct by arguing in closing that Floyd waited four days to share his side of the story, when evidence exists that Floyd talked to responding officers the night of the incident. But Floyd takes the
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State’s argument out of context. The State did not argue that Floyd refused to cooperate with law enforcement on the night of the incident. Rather, the State was attempting to undermine the credibility of Floyd’s account given several days later. It is a fact that Floyd was interviewed by law enforcement four days after the incident, and Floyd himself testified that he had been thinking of a “logical reason” for the incident. 3 RP at 1065. As Floyd acknowledges, the case hinged on the jury’s credibility determinations. Given the wide latitude afforded to the State in expressing reasonable inferences from the evidence, the State’s closing argument was not misconduct.
Nor can Floyd show that the State’s argument was so flagrant and ill-intentioned that it could not be cured by an instruction had he objected. The trial court instructed the jury that argument from the lawyers was not evidence to be considered during deliberation. Had Floyd objected to the State’s comments during closing, and assuming the trial court would have sustained the objection, the trial court could have reiterated that instruction to the members of the jury, obviating any potential prejudice therefrom.
Because Floyd fails to show that the State committed prosecutorial misconduct that was so flagrant and ill-intentioned that the resulting prejudice could not have been cured by an instruction, we hold that Floyd has waived the issue.
IV. INSUFFICIENT EVIDENCE Floyd also argues that the State presented insufficient evidence to support his second degree child molestation conviction. Specifically, Floyd argues that the State failed to prove that he was not married to EB. We disagree.
Under RCW 9A.44.086(1), a person is guilty of second degree child molestation “when the person has, or knowingly causes another person under the age of eighteen to have, sexual
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contact with another who is at least twelve years old but less than fourteen years old and the perpetrator is at least thirty-six months older than the victim.”
Under former RCW 26.04.010(1) (2012), marriage is a civil contract between two persons who have reached 18 years of age and who are otherwise capable. A marriage entered into in which either person is not 17 years old is void except where waived by a superior court judge based on a showing of necessity. Former RCW 26.04.010(2).
Where a party challenges the sufficiency of evidence at trial, we review the evidence in the light most favorable to the State to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). A sufficiency challenge admits the truth of the State’s evidence and all reasonable inferences from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980). We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
Circumstantial evidence can be used to prove a lack of marriage. State v. Rhoads, 101 Wn.2d 529, 532, 681 P.2d 841 (1984). Indeed, circumstantial evidence is not any less reliable or probative than direct evidence in reviewing the sufficiency of the evidence supporting a jury verdict. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Here, where the State did not provide direct evidence that the parties were not married, the question is whether the circumstantial evidence presented was sufficient to support the jury’s verdict.
Washington case law recognizes the sufficiency of circumstantial evidence in similar cases. See, e.g., Rhoads, 101 Wn.2d at 532 (testimony that the victim and the rapist were strangers was adequate proof that they were not married); State v. Shuck, 34 Wn. App. 456, 458,
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661 P.2d 1020 (1983) (it was reasonable to infer that there was no marriage since the victims were in the ninth grade, their entire acquaintance with the defendant lasted only one month, one of the girls had a boyfriend, and they had never spent the night at the defendant’s house); State v. May, 59 Wash. 414, 415, 109 Pac. 1026 (1910) (evidence that the victim was under 14 years old, lived at home with her father and mother, maintained her maiden name, and was “a mere schoolgirl,” was adequate circumstantial evidence to prove the lack of marriage).
The same reasoning applied in those cases applies here. The jury was presented with evidence that EB was 13 years old at the time of the incident and referred to Floyd as her “uncle” given the families’ close relationships. Given EB’s age, she could not have been married to Floyd unless a superior court judge had waived the age requirement on a basis of necessity. Former RCW 26.04.010(2). EB lived at home with her dad. EB testified that she was never in a state-registered domestic partnership with Floyd. Floyd testified that shortly before the incident, he had broken up with his significant other. Taking this evidence in the light most favorable to the State, sufficient evidence supports the jury’s finding that EB and Floyd were not married.
V. COMMUNITY CUSTODY CONDITION Floyd also argues that the community custody condition prohibiting him from socializing with people who have custody of minors is unconstitutionally broad and impermissibly restricts his right to association. We disagree.
Community custody conditions may be challenged for the first time on appeal, and where the challenge involves a legal question that can be resolved on the existing record, the conditions may be challenged preenforcement. State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019). We review community custody conditions for an abuse of discretion. Id. The
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imposition of a condition that violates the constitution is manifestly unreasonable. Id. We review constitutional questions de novo. Id.
The First Amendment to the United States Constitution, protects intimate association, but the right may be limited if reasonably necessary to accomplish the essential needs of the state and public order. State v. Frederick, 20 Wn. App. 2d 890, 909-10, 506 P.3d 690 (2022). “As part of any term of community custody, the court may order an offender to: . . . . Refrain from direct or indirect contact with the victim of the crime or a specified class of individuals.” RCW 9.94A.703(3)(b). “The defendant’s freedom of association may be restricted only to the extent it is reasonably necessary to accomplish the essential needs of the state and the public order.” State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998), abrogated on other grounds by State v. Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010).
For example, in Frederick, Division Three of this court upheld a prohibition on dating or sexual relationships with any person who has custody of minor aged children. The court reasoned that such a prohibition does not unreasonably infringe on the right to intimate association when imposed on an individual convicted of a child sex offense. Id. at 909-10. But limitations on a person’s freedom of association must imposed “sensitively” and “only to the extent it is reasonably necessary to accomplish the essential needs of the state and the public order.” Riles, 135 Wn.2d at 350.
As applied to Floyd, the condition prohibiting him from dating, socializing, or forming a romantic interest or sexual relationship with any person who has physical custody of a minor is not overly broad. Floyd gained access to his child victim by establishing close social relationships with adults who had custody of minor children and then sexually assaulting one of
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those children. Thus, it is reasonably necessary to restrict Floyd’s freedom of association in this manner to prevent further harm to children.
We affirm Floyd’s conviction and sentence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Che, J.
We concur:
Veljacic, C.J.
Lee, J.